How not to reform criminal law

The Union Home Ministry has set up a North Indian ‘manel’ to reform our criminal law codes

It took almost 23 years for the British to put in place the Indian Penal Code (IPC) in 1860 after Thomas Macaulay submitted the first draft. Independent India adopted the penal code, steeped in Victorian morality, with all its colonial trappings. The first consolidated code on criminal procedure came in 1852, and it underwent revisions during British Rule. Independent India passed its own Criminal Procedure Code (CrPC) first in 1955 and then revised it in 1973. A consolidated Indian Evidence Act also had its origins in a law passed in 1872.

Now, the Union government has embarked on an exercise to review the criminal law codes -- the IPC, CrPC and the Evidence Act – to align them with “Constitutional principles” and to shed their “paternalistic notions.” While some changes have been made to the IPC over a period of time and the CrPC was adopted with major changes in the 1970s, it was felt that there is a need for sweeping changes in them to reflect the changing times. The Ministry of Home Affairs (MHA) formed a five-man (yes, all men, all from Northern India) ‘Committee for Reforms in Criminal Laws’ headed by National Law University-Delhi (NLUD) Vice Chancellor Ranbir Singh in May this year. NLUD Registrar G S Bajpai (Convenor), lawyer Mahesh Jethmalani, former NLU-Jabalpur Vice Chancellor Balraj Chauhan and former judicial officer G P Thareja are the other members.

While the ‘Terms of Reference’ given to the committee is not available, the panel’s website highlights that its mandate is to “recommend reforms in the criminal laws of the country in a principled, effective and efficient manner, which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.” It identifies among its guiding principles the primacy of the Constitution, fair and time bound investigation and trial, revisit the relationship between State and individual, and to balance the “rights of the victims vis-a-vis the accused.”

The need for the reform in criminal laws stems from the fact that the existing laws reflect the socio-political beliefs and legal discourse of a bygone era, raising concerns about its “contemporary relevance”. “It is gravely unfortunate that these outdated principles have been replicated even in several subsequent special legislations that have been modelled on these statutes,” Singh writes.

While the panel has started online consultations with experts in July, it has come into criticism as a section of jurists, lawyers and academicians, including former Supreme Court Justices Aftab Alam, Madan Lokur, Kurien Joseph and Gopal Gowda, have found fault with the constitution of the panel itself as well as the plan it has formulated. They shot off two letters to Singh in July -- the first signed by 69 people, and the second by 123. Several questions have been raised by the critics, who allege that a mystery shrouds the entire exercise. They say that the ‘Terms of Reference’ of the panel is not in the public domain and ask whether the panel will prepare its report in consultation with the MHA or it has the mandate to do so independently.

One of the fundamental questions raised by the critics is the absence of women, Dalits and minorities, or even representation from other parts of India, in the panel. They have also questioned the six-month deadline to complete the work at a time the country is in the midst of the Covid-19 pandemic and public consultations are hampered.

The panel convenor counters that social diversity is not an issue as long as the committee is open to all inputs. Bajpai says, “not a single Law Commission or Committee can claim to be completely representative of all social diversity in our society at large. Moreover, no single gender, community, profession, or person can claim ownership as to the issues on which the criticism is being based unfairly. It is highly impetuous to offer critique on the committee’s substantive work without waiting for a preliminary report to emerge.” On the deadline, Bajpai says the MHA is considering extending its term.

The second letter sent to the committee by eminent jurists and others argued that, “given this committee’s wide remit and given that the final product of this committee’s efforts is set to reconfigure fundamentally the relationship between citizens, and between citizens and the State, it is of utmost importance that the composition of the committee reflects at least some of India’s rich diversity...In the 21st century, how can a committee that is set to rewrite criminal law not have a woman?...Is the Dalit community represented on the committee?...One cannot think of rewriting criminal law without ensuring that the life experiences of the Muslim community are adequately represented…”

As criticism mounted, the committee also increased the online consultation period for each segment on substantive law, criminal procedure law and law of evidence by two weeks. While two rounds of online consultation of substantive law and criminal procedure law have been completed, the panel expects consultations on law of evidence to be done by October 10.

Besides its regional consultations and open consultations, the panel has so far sought specific responses from experts on 218 issues regarding the IPC, CrPC and Evidence Act. The last round of questionnaires for the Evidence Act is expected to be released this week. The panel has been given a huge task, little time and a team bereft of any diversity on an issue of crucial importance to every citizen of India, especially in the light of how police forces have been behaving lately in different parts of the country. Should we even expect that it will be able to do justice to the job?